Claimant “M.G.” injured his cervical spine in a work accident in 1994. He settled his case in 1996. His condition worsened, and he re-opened his claim in 2001 and then again in 2005. Each time he ‘re-opened’ his case, his disability rating increased. When he ‘re-opened’ his case in 2005, M.G. claimed that his neck condition had worsened to the point where surgery had been required in 2003 – and that the surgery left him even more disabled than he was previously.
The respondent argued that it was the claimant’s pneumonia, combined with the fact that the claimant had AIDS, which caused the need for the 2003 surgery that further disabled the claimant.
The undisputed facts are that in 2003 M.G. was hospitalized with pneumonia. He couldn’t breathe and was hypoxic. Obviously, this was life-threatening for someone with AIDS. M.G. was intubated. Upon extubation, M.G. was “found to be quadriparetic, could not move his right upper extremity other than some muscle twitches . . .and could move his left upper extremity and his legs but only with difficulty.” Surgery was conducted to relieve spinal cord compression caused by the intubation.
M.G. argued that the quadraparesis resulted from the underlying (pre-existing) workers’ compensation injuries to his neck.
Respondent argued that there was an intervening cause for the claimant’s disability: a complication of intubation and extubation, necessitated by the claimant’s respiratory problems.
The Appellate Panel (Cuff, Fisher) agreed with the employer: The claimant’s respiratory problems were brought about by HIV, not the workplace injury, and the complications flowing from the respiratory treatment were not the responsibility of the employer (who last employed this claimant nine years earlier).
Petitioner’s attorney (predictably) argued that the respiratory condition merely ‘aggravated’ the claimant’s underlying cervical injuries, and that the employer should have been held liable. The Appellate Panel, applying a ‘but for’ test, stated that “the petitioner did not require surgery in question until after he contracted pneumonia, was intubated for his respiratory distress and then extubated . . . the pneumonia and the medical actions taken to address petitioner’s respiratory problems were not caused by the work-related injury but because the petitioner was HIV-positive.”
Case: M.G. v. JLL, App. Div 39-2-3908, Decided May 21, 2009. Questions about this case? Please contact me directly.